Preston v Commissioner for Fair Trading

District Court

New South Wales

Medium Neutral Citation:

Preston v Commissioner for Fair Trading [2012] NSWDC 81

Hearing dates:

4 May 2012

Decision date:

04 May 2012

Before:

P Taylor SC DCJ

Decision:

Proceedings dismissed

Plaintiff to pay the Defendant's costs

Catchwords:

Enforcement of Costs order - costs ordered in other proceedings need for assessment

Legislation Cited:

Uniform Civil Procedure Rules 2005 rule 3.4(1)(b)
Legal Profession Act 2004 part 3.2; Div11; s.366
Legal Profession Regulations 2005 reg 125

Cases Cited:

Preston v Commissioner for Fair Trading [2011] NSWCA 40
Wentworth v Rogers [1999] NSWCA 403

Category:

Principal judgment

Parties:

Stephen Frederick Preston - Plaintiff
Commissioner for Fair Trading - Defendant

Representation:

Mr Preston in person
Mr Newton
I V Knight; Crown Solicitor - Defendant

File Number(s):

2012/95157

Judgment

1. HIS HONOUR: In this matter the plaintiff, Stephen Preston, obtained in other proceedings between the parties an order from the Court of Appeal of New South Wales in the following terms:

"Order the respondent to pay to the appellant the amount of out-of-pocket expenses of a type that would have been recoverable as disbursements if the appellant had been legally represented, that the appellant has actually and reasonably incurred concerning the present appeal".

1. See Preston v Commissioner for Fair Trading [2011] NSWCA 40.

1. The amount of the expenses that fall within the ambit of the order of the Court of Appeal has been the subject of correspondence between the parties. The parties have not been able to agree as to the appropriate amount to which the plaintiff became entitled by reason of that order, nor has there been any assessment of those costs or expenses.

1. On 26 March 2012 the plaintiff commenced proceedings in this Court seeking to obtain the sum of $471,978, which included a claim of $396,000 for costs that fell within the order of the Court of Appeal, plus interest and other fees.

1. On 20 April 2012 the defendant put on a defence, paragraph 9 of which asserts that:

"(a) Unless the defendant agrees to an amount, no money is payable under the costs order until the costs order has been assessed in accordance with Pt 3.2 Div 11 of the Legal Profession Act.

(b) The defendant has not agreed to the amount claimed by the plaintiff or any amount with respect to the costs order.

(c) The proper forum for determining the amount payable under the costs order is an assessment in accordance with Pt 3.2 Div 11 of the Legal Profession Act.

(d) The District Court does not have jurisdiction to hear the plaintiff's claim."

1. The defendant on the same date filed a notice of motion seeking an order that the proceeding be dismissed pursuant to r 13.4 (1) of the Uniform Civil Procedure Rules 2005, and some alternative orders, and an order that the plaintiff pay the defendant's costs in the proceedings.

1. Both of the parties have provided written submissions to the Court. The substance of the submissions prepared on behalf of the plaintiff…